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By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We are frequently consulted by family members of individuals who are erroneously confined under Florida’s Baker Act, Section 394.451, Florida Statutes. An erroneous confinement under the Baker Act can occur for a number of different reasons. However, the result is that an independent citizen is confined in violation of his constitutional rights to liberty and privacy.

The Baker Act contains a wide range of provisions ranging from screening, to appointment of legal guardians. But, what the Act is most known for are the involuntary evaluation and confinement provisions.

What is Involuntary Evaluation?

Being Baker Acted essentially means that a person has exhibited some behavior that makes them appear to have a mental illness. Going without care or treatment may result in neglect or harm to themselves or to others.

The initial determination can be made by one of three types of people:

(1) A court can issue an order stating the person appears to meet the criteria and can direct that person to be transported to a facility for an involuntary evaluation;

(2) A law enforcement officer can take a person who appears to meet the criteria into custody and transport him/her to a facility for an involuntary evaluation;

(3) A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist or clinical social worker may execute a certificate stating that he/she has evaluated the person within the last 48 hours and the person appears to meet the criteria for involuntary evaluation.

When a person is the subject of an involuntary examination, they can be held in a facility for a maximum of 72 hours. During this period of time, physicians and counselors will examine and interview the patient to determine his/her mental state. This in turn determines the type and duration of further treatment that may be needed including further involuntary confinement.

The facility must, within the 72 hours, do one of the following things:

(1) Release the patient without condition;

(2) Release the patient for voluntary outpatient treatment;

(3) Request that the patient give consent to being admitted for voluntary inpatient treatment;

(4) File a petition for involuntary placement with the appropriate circuit court when outpatient or inpatient treatment is necessary but the patient refuses to consent.

How to Get Out.

The facility isn’t the only one with the ability to get the court system involved. A patient or the patient’s guardian advocate can file a petition for writ of habeas corpus requesting a hearing regarding release from involuntary confinement.

Before you file a petition, a friend or family member, with the help of legal counsel, may be able to help to obtain a patient’s release during the 72-hour window. The predominant factor is whether the person being held is a danger to themselves or others. This means that a family’s plans to address the facility’s concerns through voluntary treatment or the active participation of family can be very effective.

One of the best ways to let the facility know that you are serious about getting someone released is to hire an attorney. The mere presence of an attorney along with family members lets the facility know that there is a support system in place.

The Baker Act specifically states that confinement is not appropriate when any apparent harm “may be avoided through the help of willing family members or friends” Section 394.463(1)(b)(1), Florida Statutes.

The Hearing Process.

If you are unable to obtain a person’s release prior to the facility filing a petition for involuntary confinement, here are some strategies to prepare for the hearing.

(1) Meet with the patient to try to explain the situation and try to prepare them for the hearing by explaining the purpose of the hearing and what questions to expect.

(2) Meet with the facility’s director to try and gauge the institution’s position on further treatment and involuntary confinement. Depending on the plans put in place by the confined person’s family, you may be able to convince the facility to withdraw the petition and discharge the patient.

(3) Meet with the counselors and nurses caring for the patient to discuss their opinions. These people are likely to be key witnesses during the hearing.

(4) Meet with the physician who examined the patient and try to determine why he/she is recommending further treatment. Also, try to discuss alternative treatment plans that would be acceptable so that those arrangements can be made prior to the hearing.

(5) If possible, meet with the assistant state attorney who will be representing the government in the hearing to discuss options. If you can get the treating physician on your side, you may be able to get the government to support a discharge.

Many of these tips require knowledge of the legal system and the medical field. You or your family member stand the best chance of being discharged from a Baker Act confinement if you have experienced legal counsel or a patient advocate to assist. To learn even more about the Baker Act, click here to read one of our past blogs.

Comments?

Have you had any experience with a family member or friend being involuntarily confined under the Baker Act? How did you handle the situation? How did the victim react to being confined? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Handling Victims of Involuntary Confinement Through the Baker Act and Marchman Act.

The Health Law Firm represents individuals, families and friends in challenges to and hearings related to the Florida Baker Act and Marchman Act, when the basic criteria for confinement are not met and there is no medical necessity for further confinement.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Whether you are a psychiatrist, psychologist, licensed clinical social worker, or another type of mental health professional, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints. Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to the Simplest Facts May Harm You.

We are routinely consulted by mental health professionals and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves. Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Quasi-Criminal.”

The vast majority of mental health professionals and even most attorneys do not realize that DOH investigations concerning complaints against a practitioner’s license are considered to be “penal” or “quasi-criminal” proceedings. This means the same laws and constitutional rights apply to them as apply to criminal investigations. However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

Investigators’ Techniques Try to Get You to not Consult a Lawyer.

DOH investigators, like police investigators, FBI investigators and other law enforcement officers, are well-trained in investigative techniques and how to get information out of suspects. Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you. Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you. Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate. Yet another is that “Things will go much better for you if you cooperate.” None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this. The investigator should not mind waiting until you consult your attorney. However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorney.

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. Call or contact The Health Law Firm for legal advice before you talk to any investigator about any matter.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.